ADM. REVIEW DOCKET NO. GC710341RO
STATE OF NEW YORK
DIVISION OF HOUSING AND COMMUNITY RENEWAL
OFFICE OF RENT ADMINISTRATION
GERTZ PLAZA
92-31 UNION HALL STREET
JAMAICA, NEW YORK 11433
------------------------------------X
IN THE MATTER OF THE ADMINISTRATIVE ADMINISTRATIVE REVIEW
APPEAL OF DOCKET NO.
GC710341RO
DISTRICT RENT
ADMINISTRATOR'S DOCKET
NO. FL710090R
ARTHUR T. MOTT,
PETITIONER Tenant: Lawrence McLeod
------------------------------------X
ORDER AND OPINION DENYING PETITION FOR ADMINISTRATIVE REVIEW
On March 12, 1992, the above-named owner filed a petition for
administrative review of an order issued on February 6, 1992 by the
Rent Administrator, concerning the housing accommodations known as
Apartment 1-C, 77 Terrace Avenue, Hempstead, New York.
The Commissioner has reviewed all of the evidence in the
record and has carefully considered that portion of the record
relevant to the issues raised by the petition for review.
This proceeding was commenced by the filing of a rent
overcharge complaint by the subject tenant, dated December 5, 1991.
In his complaint the subject tenant alleged, among other things,
that:
1) The subject tenant's initial lease
was a one-year lease commencing on
December 1,1990 at a monthly rent of
$675.00;
2) The subject tenant entered into a
one-year renewal lease commencing
on December 1, 1991 at a monthly
rent of $708.75, and
3) The prior tenant of the subject
apartment filed a rent overcharge
complaint with the rent agency, and
that the Administrator issued
an order reducing the prior
tenant's rent.
ADM. REVIEW DOCKET NO. GC710341RO
To his complaint the subject tenant attached a copy of the
aforementioned initial lease, and a copy of an Administrator's
order issued on January 28, 1991, under Docket No. EG710133R, in
which the Administrator determined that the subject owner had
collected rent from the prior tenant of the subject apartment in
excess of the legal regulated rent. The above-mentioned order
directed the subject owner to refund to the prior tenant the excess
rent collected in the amount of $3,016.74 which included interest
and excess security. Furthermore, the above-mentioned order
determined that the prior tenant's legal regulated rent for the
lease period commencing on April 1, 1989 and expiring on March 31,
1990 was $477.31 per month, and the legal regulated rent for the
lease period commencing on April 1, 1990 and expiring on March 31,
1992 was $508.34 per month.
On December 19, 1991 the Division of Housing and Community
Renewal (D.H.C.R.) mailed to the subject owner a copy of the
subject tenant's complaint, and a notice directing the subject
owner to submit its answer and a copy of the subject tenant's lease
"and a copy of the lease immediately prior thereto," to the rent
agency within twenty days of the above-mentioned date.
On January 13, 1992 D.H.C.R. mailed a notice to the subject
owner which stated as follows:
Attached hereto, is a copy of a
complaint which our records indicate
was first forwarded to you on 12-19-91.
Please be advised that as of 1-13-92
we have not received a response.
Therefore this must be a Final Notice.
If we do not receive a reply within
twenty (20) days of the date of this
notice, we will be compelled to issue
an Order based on the undisputed
evidence already in the record.
Such an order may subject you to the
penalties prescribed by the Regulations.
The record reflects that the subject owner did not respond to
the above-mentioned notices.
On February 6, 1992 the Administrator issued the order under
review herein, which determined that the subject tenant's legal
regulated rent for the initial lease period commencing on December
1, 1990 and expiring on November 30, 1991 was $536.19 per month.
(Pursuant to Section 2502.5 (c) (6) of the State Tenant Protection
Regulations, the subject tenant's legal regulated rent for the
ADM. REVIEW DOCKET NO. GC710341RO
initial lease period was calculated based upon the legal regulated
rent of the last completed lease term which was $477.31 per month
plus a 4% Nassau County Guideline increase for a one-year lease
plus a vacancy factor of $39.78), and the legal regulated rent for
the lease period commencing on December 1,1991 and expiring on
November 30, 1992 was $563.00 per month (September 30, 1991 rent of
$536.19 per month plus a 5% Nassau County Guideline increase for a
one-year lease). The Administrator's order under review herein
also determined that there was a rent overcharge of $6,454.66,
including treble damages and excess security, and the Administrator
directed the subject owner to refund the above-mentioned amount to
the subject tenant.
In the above-mentioned order the Administrator pointed out
that there was no petition for administrative review of the
aforementioned Docket No. EG710133R, issued on January 28, 1991.
In its petition the subject owner asserts, among other things,
that the complainant commenced occupancy in the subject apartment
prior to the issuance of the Administrator's order issued on
January 28, 1991, under Docket No. EG710133R; that as the above-
mentioned order was issued after the complainant's initial
occupancy of the subject apartment the subject owner states that it
"was unaware that the rent for the apartment would be established
at $477.31 for the prior tenant at the time of the complaining
tenant's occupancy"; that the subject owner "inadvertently
neglected to correct his records and reflect the new rent in the
complaining tenant's legal regulated rent which had already been in
effect for several months," and that the Administrator should not
have imposed treble damages as the owner did not willfully collect
rent in excess of the legal regulated rent.
After careful consideration, the Commissioner is of the
opinion that the subject owner's petition should be denied.
The Commissioner notes that the subject owner in its petition
does not dispute the Administrator's determination of the
complainant's legal regulated rent.
Accordingly, the Commissioner finds that the Administrator's
determination of the complainant's legal regulated rent should not
be disturbed.
As noted in the Administrator's order under review herein, the
subject owner did not file a petition for administrative review of
the order issued on January 28, 1991, under Docket No. EG710133R.
The Commissioner finds that Docket No. EG710133R is a final
ADM. REVIEW DOCKET NO. GC710341RO
determination of DHCR. The Commissioner notes that the
Administrator in Docket No. EG710133R established the subject
apartment's legal regulated rent for the lease period commencing on
April 1, 1989 and expiring on March 31, 1990 at $477.31 per month.
The Commissioner finds that the subject owner's assertion in
its petition that "there was no willfulness" in its collecting rent
in excess of the legal regulated rent is belied by the fact that
after D.H.C.R. served the subject owner with the order issued under
Docket No. EG7120133R, on January 28, 1991, the subject owner did
not reduce the complainant's rent to the legal regulated rent, and
it did not refund to the complainant the excess rent that was
collected.
The Commissioner notes that the D.H.C.R. mailed to the subject
owner the complainant's overcharge complaint and the order issued
under Docket No. EG710133R twice, the first time was on December
19, 1991 and then again on January 13, 1992; the Commissioner
further notes that the subject owner did not respond to the above-
mentioned complaint, and it still did not reduce the subject
tenant's rent to the legal regulated rent, as calculated in the
aforementioned Docket No. EG710133R.
The Commissioner finds that prior to the issuance of the
Administrator's order under review herein the rent agency gave
notice to the subject owner three separate times that it was
collecting rent in excess of the legal regulated rent.
Accordingly, the Commissioner finds that the collection of the
subject tenant's rent in excess of the legal regulated rent by the
subject owner was willful, and the Commissioner further finds that
the Administrator's order imposing treble damages in this
proceeding should not be disturbed.
The owner is cautioned that rents for the period subsequent to
November 30, 1992 should be based upon the monthly rent of $563.00
for the lease period of December 1, 1991 through November 30, 1992
as determined by the Administrator, and that any demand for and
collection of an amount in excess of the lawful amount may give
rise to a new overcharge complaint, in which treble damages may be
awarded.
THEREFORE, in accordance with the Emergency Tenant Protection
Act of 1974 and the State Tenant Protection Regulations, it is
ORDERED, that this petition be, and the same hereby is,
denied, and that the Administrator's order be, and the same hereby
is, affirmed; and it is
ADM. REVIEW DOCKET NO. GC710341RO
FURTHER ORDERED, that rents after November 30, 1992 shall be
based upon the monthly rent of $563.00; and it is
FURTHER ORDERED, that the owner shall immediately refund to
the tenant all amounts not yet refunded representing overcharges,
penalties and treble damages; and it is
FURTHER ORDERED, that if the owner has refunded no such
amounts upon the expiration of the period for seeking judicial
review of this order pursuant to Article 78 of the Civil Practice
Law and Rules, and the tenant has credited no such amounts, the
tenant may file and enforce a certified copy of this order as a
judgment for the amount of $6,454.66 against the owner, Arthur T.
Mott.
ISSUED:
JOSEPH A. D'AGOSTA
Deputy Commissioner
|
